Just days after President Trump failed to denounce white nationalism and told a fascist street gang, the Proud Boys, to “stand by” during the first Presidential debate, the nation was shocked when federal and state law enforcement agencies announced the arrest of over a dozen militia members tied to an alleged plot to kidnap the Democratic governor of Michigan, Gretchen Whitmer. The arrests stand as one of the largest coordinated law enforcement actions against private militias in recent memory, but they were just the latest in a series of law enforcement interventions against militants attached to the “boogaloo” movement, a loosely-affiliated nationwide assortment of far-right and anti-liberal paramilitaries preparing for a second American civil war. Some of these incidents have been fatal: police killed alleged boogaloo adherents Duncan Lemp and Eric Allport, their deaths creating further outrage among the largely-white, largely-male, largely-right wing movement.
The alleged plot to kidnap the governor is shocking only in its scale and audacity. In recent weeks, we have seen both the Department of Homeland Security and the Federal Bureau of Investigation state recently that white supremacist and racially-motivated extremism remains the top domestic terror threat in the United States. Over the past five years, the far-right has been responsible for the majority of extremist-related violence; the Pulse nightclub shooting in 2016 being the most significant exception.
This type of violence is not novel among the militia movement. In 2016, three men in a militia called The Crusaders were arrested for a plot to bomb and attack a nearby Muslim community; they were eached sentenced to 25+ years in federal prison. In 2017, a man associated with the “Three-Percenter” movement, a national militia movement, was arrested and later convicted after attempting to blow up an Oklahoma City bank. And a trial is about to be underway for a militia leader alleged to have fire bombed an Islamic center and a women’s health clinic, attempted to sabotage a railway track, and robbed two Wal Marts at gunpoint. Yet despite this pattern of terroristic activity, militias have managed to enjoy a public presence largely unbothered by police.
In April, hundreds of armed militants marched into the Michigan statehouse, some violently shouting at police while not wearing masks, to protest the Coronavirus lockdown measures, with barely any resistance from law enforcement. The state Senate had to suspend its session as a result. Yet weeks later, protests erupted after the murder of George Floyd, and police violence against peaceful protesters was a nightly occurrence. Police in Portland discovered a militia standing overwatch with a weapons cache atop a parking garage rooftop during a protest in 2018 and withheld this information from the mayor. Despite being out after curfew and illegally armed, police gave Kyle Rittenhouse bottled water before he allegedly murdered two counter-protesters with his rifle. It is tempting to demand that the militias receive their fair share of law enforcement’s attention.
Despite the FBI taking a clear lead in thwarting the kidnapping plot, only a handful of the men were charged with federal offenses. This is the result of what some perceive as a gap in federal criminal law—the law defines crimes for international terrorism but is noticeably weak on domestic terrorism statutes. To be clear, the plot as alleged does qualify under most definitions of domestic terrorism, and in fact many of the men arrested have been charged with terror-related state-level offenses. But the narrow scope of federal domestic terror law means that it is much harder to employ the immense power of the anti-terror surveillance apparatus that the government has spent much of the last two decades building against these militants.
The calls for declaring these groups “terrorists” comes partly from a place of outrage and racial justice: after all, law enforcement calls Black people “gangsters” and “thugs,” calls Muslims “terrorists,” and calls Hispanic people “invaders.” Is it not white supremacy to treat violent white men with kid gloves?
But the problem is more complex than that. Much of the resistance to the word “militia” is rooted in a mistaken belief that militias are a legitimate, constitutionally-protected concept. Kathleen Belew, who studies white power movements and wrote Bring the War Home about the intersection of militias and military veterans, writes, “I worry that the push to qualify definitions might create the idea of good, or neutral militias that ARE legitimate. These are not. They are not neutral observers. They are not keepers of law and order. They are paramilitary groups.” Georgetown University law professor Mary McCord led a lawsuit against paramilitaries in the wake of the Unite the Right rally in Charlottesville in 2017. As part of her research, she assembled fact sheets on existing state and federal laws that limit or outlaw the activities of private militias. All 50 states have such laws. Moreover, the use of the word “militia” in the United States Constitution has since been interpreted to mean the National Guard. Indeed, while some states have laws empowering the governor to designate or sanction a militia, this is not a relevant factor in the analysis of these unsanctioned private paramilitaries. Militias are already proscribed. The problem we are facing today is precisely that these militias are regularly operating far beyond the ambit of their legally-protected rights.
The problem with using the words “terrorist” or “gang” to describe this activity is that these are high-caliber concepts in a law enforcement context. The federal government is granted sweeping authority in matters of international terrorism. Secret courts can grant extraordinary permissions to law enforcement to tap calls, crack phones, and engage in other activities that would normally be seen as a shredding of the Fourth Amendment.
Similarly, gang designations result in a significant increase in carceral power. Police departments use, but poorly maintain, gang databases, even for questionable purposes such as immigration enforcement. Once someone’s name is entered into a gang database, it is nearly impossible to remove them. These databases are filled with junk data and are replete with racial bias. Despite this, anti-gang measures continue to be applied even to relatively minor crimes. Gang charges carry enhanced sentencing, and this disproportionately affects Black and Migrant communities.
We should be hesitant to expand these powers simply because of the increase in far-right violence. In the wake of the Oklahoma City Bombing—an attack perpetrated by a far-right militia—new laws were written with the intent of preventing similar future attacks. Yet these laws were used aggressively against animal rights and environmental activists, not heavily-armed squads of racial extremists. President Trump and Attorney General Bill Barr have made it a campaign promise to designate “ANTIFA” as a domestic terror organization, although they cannot do so absent an act of Congress to create such a designation. When Michael Reinoehl was suspected in a protest-related killing in Portland, the only suspected politically-motivated killing by an antifascist in nearly 30 years, he was not given the opportunity to stand trial. Instead, according to witnesses, over three-dozen police officers found him in an alley and opened fire with nary a warning, killing him.
The FBI’s intervention this week proves that existing laws and legal powers are sufficient to stop militia terrorism. This is not to say that we should shy away from using the terms “terrorism” and “gang” when they clearly and unambiguously apply—I myself have done so. But we must understand that law enforcement has not been historically permissive to militias because they have not been labeled “gangs” or “terrorists.” Police have given these groups incredible elbowroom because police and militias fundamentally uphold the same white supremacist notion of law and order. Moreover, we must disabuse ourselves of the conviction that there is a legitimate version of empowered, private paramilitary action in a democratic society. Militias do not represent an alternative to policing, they represent an alternative to public accountability. In other words, the problem is not that militias are not correctly classified to be noticed by police, the problem is that the militias have been acting as an extension of the police. Demanding harsher action from law enforcement will likely not have the intended effect of tempering white supremacist activities, but rather the opposite: it has and will continue to be used to silence and eradicate those who organize against white supremacist activities.
As we move closer to election day, there is a palpable anxiety among many who study far-right extremism. Exacerbated by a toxic social media landscape, a government whose credibility wanes hourly, and collapsing certainty as a winter of Coronavirus looms, conditions are ripe for extremist outbursts. There is no uniform consensus among those who study extremism as to whether a Trump victory or a Trump loss will result in greater violence. The bald-faced truth of America is that the rule of law is markedly broken, stained by demagoguery and the corrupted. But for this, appeals to a stronger rule of law will only result in rule by tyrant law. We should be hesitant to inspirit this system.